Play It Safe – Set Aside the Default

The lesson for trial judges in divorce is clear: when in doubt, set aside a default judgement if the defendant appears within a reasonable time, regardless of the 30 day deadline.

The case is Harkey v. Harkey, Case No. 2130667 (Ala. Civ. App. October 24, 2014). The trial court granted a divorce to the Husband – including custody of the two minor children – after a return of service form was filed indicating service of process on the wife. A week after the default judgment was entered, the Wife appeared pro se. She said she had not been served and filed to set the judgment aside. The trial court, for reasons unknown to anyone outside the judge’s brain, denied the motion. The Wife appealed. The Appeals Court reversed.

The Appeals Court acknowledged that the decision whether to set aside a judgment of default rests within the trial court’s discretion, but it then went on to say this:

“a trial judge should start with the presumption that cases should be decided on the merits whenever practicable.” Kirtland v. Fort Morgan Auth. SewerServ., Inc., 524 So.2d 600, 604 (Ala. 1988). The presumption in favor of deciding cases on their merits applies most cogently in cases involving child custody because of the judicial duty to scrupulously protect the best interests of children. See Sumlin v. Sumlin, 931 So.2d 40, 44 (Ala. Civ. App. 2005). Our caselaw since Kirtland was decided has emphasized that the sensitive matter of child custody should, in the absence of extraordinary circumstances, be decided based on a thorough investigation of the best interests of the child. See Sumlin, supra; and Owens v. Owens, 626 So.2d 640 (Ala. Civ. App. 1993).

The Appeals Court applied the Kirtland case to consider three factors: “1) whether the defendant has a meritorious defense; 2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and 3) whether the default judgment was a result of the defendant’s own culpable conduct.” Kirtland, 524 So.2d at 605.” The Appeals Court determined that (a) the Wife/Appellant presented evidence of a meritorious defense, namely that she was the children’s primary caretaker; (b) there is no prejudice because the Wife filed within a week after the default judgment; and (c) there was no evidence of the Wife’s culpability in her failure to respond in a timely manner. The Appeals Court acknowledged that the application of the Kirtland factors was in the discretion of the court but then pointed out that the trial court had not held a hearing and had seemingly not considered the Kirtland factors at all.

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